Select Committee on Religious Offences in England and Wales Minutes of Evidence

Memorandum from the Rt Hon. The Lord Goldsmith QC, Attorney General

When the Attorney General decides to consent to or refuse a prosecution under Part III of the Public Order Act 1986 how are any ECHR rights taken into account? If so, which ones and how is it done?

  The Convention right most likely to be engaged in potential prosecutions for offences contrary to Part III of the Public Order Act 1986 is the right to freedom of expression guaranteed by Article 10.

  Article 10 is a qualified right. This means that the right provided for in Article 10.1 is not absolute, but may legitimately be subject to restrictions so long as they are prescribed by law and are necessary in a democratic society in the interests of national security, territoriality or public safety, for the prevention of disorder of crime, for the protection of health or morals and so on.

  Where a criminal offence is created by statute, as is the case with the Part III offences, Parliament determines the scope of the conduct that the offence will prohibit. This involves an assessment as to whether the restriction of the right to freedom of expression imposed by the offence is justified. The scope of the offence therefore represents Parliament's definition of the conduct that is prohibited by the offence, notwithstanding any restriction on a Convention right that this might involve. That is the starting point.

  The second point to make is that the Human Rights Act 1998 specifically preserves the sovereignty of Parliament. So a law remains in force even if a Court declares it to be incompatible with the Convention. The Courts recognise that Parliament must be accorded a discretionary area of judgment.

  Moving on to the consideration of prosecutions, if the conduct in question falls short of being an offence as that offence is defined in the statute, there is no need to consider any Convention points. There is no question of any prosecution if the individual has acted within the law or if there is insufficient evidence that he has contravened the law.

  Where there is sufficient evidence that an individual has committed one of the relevant offences, the facts and circumstances of the individual case may give rise to Convention considerations. The Attorney General is of course bound to apply the principles of the European Convention on Human Rights in accordance with the Human Rights Act 1998. Equally, even where there is sufficient evidence to justify a prosecution he retains the discretion not to prosecute where he assesses that a prosecution is not needed in the public interest.

  In practice, in the cases I have considered where there was sufficient evidence to justify a prosecution the conduct was such that it was clear that a prosecution was needed in the public interest, and that there was no compelling Convention argument to the contrary.

If Clause 2 of the Religious Offences Bill (HL Bill 39) were enacted how would the Attorney General approach ECHR Article 10? The draft guidance issued at the time the Anti-terrorism, Crime and Security Bill was being debated gives some idea, in paragraphs 1.2 and 5.12, but:

    (a)  Please elaborate on the "high threshold tests"

    (b)  Is the Attorney General's consent the right or the only way to deal with the Article 10.2 issue?

    (c)  Would the Attorney General give reasons for consent or refusal?

  A number of alarmist assertions about the range of apparently innocent conduct which it was claimed might become a crime if the proposed offence became law, demonstrated to me that many commentators did not fully understand the effect of the clauses creating the proposed offence, and some were perhaps unfamiliar with aspects of the prosecution process.

  So as to avoid the possibility of misunderstandings creeping into the debate on these clauses that was to take place in the House of Lords on 13 December, I took the exceptional step of drafting a document which aimed to explain in straightforward language the conduct that the new offence intended to criminalise, by reference to the draft clauses themselves. The guidance did not purport to limit the effect of the proposed law in any way—for example the guidance does not purport to define terms such as "hatred" which are not defined by the law itself—but to assist a wider understanding of the effect of the proposed law. I should add that because the clauses did not pass into law the guidance has never taken effect.

  It is helpful to read the guidance as a whole rather than isolating sections of it. The reference to "high threshold tests" in paragraph 5.12 of the guidance, for example, is a reference to the words used in the draft clauses to define the conduct that would amount to an offence of incitement to religious hatred. Those key words and concepts are highlighted in the preceding paragraphs 5.3 to 5.11.

  As regards the approach to Article 10 and Convention rights, the Committee has seen paragraph 1.2 of the draft guidance. The police, the Crown Prosecution Service and the Attorney General, as public authorities, are bound to apply the principles of the European Convention on Human Rights in accordance with the Human Rights Act 1998. As the assessment of the impact of the Convention can only fully take place against the backdrop of the particular facts of the case, I cannot add to what I have already said on this question.

  The requirement for the Attorney General's consent to a prosecution, which was included in the clauses which appeared in the Anti-terrorism, Crime and Security Bill, is consistent with the same requirement for offences of incitement to racial hatred. I cannot comment on the policy underlying the drafting of Lord Avebury's Bill.

  Where the Attorney General refuses his consent to a prosecution he informs the Crown Prosecution Service of the reasons. If asked by others to explain his decisions, such as Members of Parliament, the Attorney General's policy is to be as helpful as possible.

Some of our Witnesses have argued the need for an annual report on the Attorney-General's decisions in such cases. Is this feasible and/or desirable?

  I have not heard the arguments put forward in favour of such a report, and I do not know precisely what those in favour of such a report may have in mind. I would assume that the proponents would like regular systematic information. In practical terms, the feasibility of such a report would depend on the detail required. I see no great difficulty in my providing some statistical information about consents granted and refused, such as may be requested via a Parliamentary question. But I would strongly resist any attempt to create a statutory duty to report annually.

  I am not convinced in any event that information about consents alone would achieve any useful purpose. Raw data in isolation can be misleading. The numbers alone don't really provide a picture of how the criminal justice system overall is responding to this type of offence. Some conduct of this kind may be more effectively prosecuted as religiously aggravated public order offences; some cases do not pass the threshold tests of sufficiency of evidence and public interest. As we learned with racial hatred offences, it is the response of the whole criminal justice system from the moment an offence is committed, to the sentencing stage, which needs to be transparent.

  It is a mistake to take sections of the process and try and draw useful conclusions from the information. The important thing is to be aware of the experience of victims from investigation to sentence. A good example of this "joined up" approach was the recent thematic report of the Inspectorates of Constabulary and the CPS into offences with a racial element. That report provided qualitative and quantitative data, and concluded with a number of very helpful recommendations. That kind of approach is more likely to produce helpful information than data on consents alone.

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